UNIT 2

SEPARATION OF POWERS

Separation of powers is a doctrine that divides the government into three distinct branches: the legislature, the executive, and the judiciary. Each branch is independent and has separate and distinct powers and responsibilities. This concept ensures that no single branch can monopolize power, providing a system of checks and balances. The idea of separation of powers was first articulated by the French philosopher Montesquieu in his work "The Spirit of the Laws" (1748). Montesquieu argued that the concentration of legislative, executive, and judicial powers in the same hands would lead to tyranny. See the case of A.G. Ondo State v. A.G. Federation (2002) 9 NWLR (Pt. 772) 222 where the Supreme Court of Nigeria emphasized the importance of separation of powers in ensuring the independence of each branch of government and the case of Lakanmi & Anor v. A.G. Western Region (1971) 1 UILR 201 where the court held that the military government could not assume judicial powers, reinforcing the doctrine of separation of powers.

APPLICATION IN NIGERIA

The principle of separation of powers is enshrined in the 1999 Constitution of the Federal Republic of Nigeria. The Constitution provides for the separation of government powers among the three branches:

1. Legislative powers: See section 4 of the Constitution which vests legislative powers in the National Assembly, which consists of the Senate and the House of Representatives.
2. Executive powers: See section 5 of the Constitution which vests executive powers in the President.
3. Judicial powers: See section 6 of the Constitution which vests judicial powers in the courts established by the Constitution.

THE RULE OF LAW

The rule of law is a principle that asserts that all individuals and institutions are subject to and accountable to law that is fairly applied and enforced. It is the foundation of a fair and just society, ensuring equality before the law, accountability, and the protection of fundamental rights. The rule of law is a cornerstone of Nigeria’s legal system, enshrined in the 1999 Constitution. The Constitution provides for the protection of fundamental rights (Chapter IV), the independence of the judiciary (Section 6), and the accountability of government actions (Sections 4, 5, and 6). See the case of Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621 where the Supreme Court emphasized the importance of the rule of law, holding that the government must act within the confines of the law and the case of A.G. Abia State v. A.G. Federation (2002) 6 NWLR (Pt. 763) 264 where the court reaffirmed the principle of the rule of law, stating that the government must respect court orders.

ELEMENTS OF THE RULE OF LAW

1. Supremacy of the law: this is where the law is supreme over all individuals and government actions.
2. Equality before the law: this is where all individuals are equal under the law, and no one is above the law.
3. Accountability to the law: this is where government officials and individuals are accountable to the law.
4. Fairness in the application of the Law: this is where laws must be applied and enforced impartially and consistently.
5. Protection of fundamental rights: this is where laws must protect fundamental human rights.

CLASSIFICATIONS OF CONSTITUTIONS

1. Written and unwritten constitutions: where written constitution is a formal document that defines the structure of government, the distribution of powers, and the rights of citizens. An example is The 1999 Constitution of Nigeria. Unwritten constitution is a constitution that is not codified in a single document but is based on customs, conventions, judicial decisions, and statutes. An example is The United Kingdom.
2. Rigid and flexible constitutions: where rigid constitution is a constitution that requires a special procedure for amendment, making it difficult to change. See section 9 of The 1999 Constitution of Nigeria. Flexible constitution is a constitution that can be amended through the ordinary legislative process. An example is The United Kingdom’s constitution.
3. Federal and unitary constitutions: where federal constitution is a constitution that divides powers between a central government and regional governments, with each level of government having distinct areas of authority. An example is The 1999 Constitution of Nigeria. Unitary constitution is a constitution that concentrates power in a central government, with regional authorities exercising only the powers delegated to them by the central government. Example: France.

PRESIDENTIAL SYSTEM OF GOVERNMENT

A presidential system of government is one in which the executive branch is separate from the legislature. The President is both the head of state and the head of government, and is elected independently of the legislature. Nigeria operates a presidential system of government, as outlined in the 1999 Constitution. See the case of Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 where the Supreme Court of Nigeria highlighted the distinction between presidential and parliamentary systems, emphasizing the separation of powers in a presidential system. Presidential system of government has the following features;

1. Separation of powers: this is a clear division between the executive and legislative branches.
2. Fixed term of office: this is where the President serves for a fixed term and can only be removed through impeachment.
3. Direct election: this is where the President is elected directly by the people.
4. Cabinet accountability: this is where the President appoints cabinet members who are accountable to him, not to the legislature.

PARLIAMENTARY SYSTEM OF GOVERNMENT

A parliamentary system of government is one in which the executive branch derives its legitimacy from and is accountable to the legislature. The head of state is separate from the head of government. See the case of A.G. Abia State v. A.G. Federation (2006) 16 NWLR (Pt. 1005) 265 where the court discussed the federal structure of Nigeria’s government, distinguishing it from unitary systems. Parliamentary system of government has the following features;

1. Fusion of powers: this is where the executive and legislative branches are interconnected.
2. Prime minister: this is where the head of government is the Prime Minister, who is typically the leader of the majority party in the legislature.
3. Collective responsibility: this is where the cabinet is collectively responsible to the legislature.
4. Flexible terms: this is where the government can be dissolved by a vote of no confidence.

CONCLUSION

Understanding the separation of powers, the rule of law, classifications of constitutions, and systems of government is crucial for comprehending the functioning of the Nigerian legal and political system. Each concept plays a vital role in maintaining the balance of power, ensuring justice, and protecting the rights of citizens.